Schneidt v. Schneidt

Dausman, C. J. This action was instituted by ap- ■ pellant against the appellees to vacate a decree of divorce and to establish appellant’s rights with respect to certain personal property. It appears from [667] the amended complaint that appellant and one William Schneidt, now deceased, were husband and wife; that said William obtained a decree of divorce from appellant on constructive service and without her knowledge; that at the time of his death he was the owner of some personal property; and that the appellees are claiming said property adversely to appellant. A demurrer for want 'of facts was sustained to the amended complaint. Appellant declined to plead further, and on April 29, 1915, judgment was rendered accordingly. On May 25, 1915, appellant filed her motion for a new.trial on the sole ground that the court erred in sustaining said demurrer. That motion was carried on the docket until October 5, 1918, on which day it was overruled. The transcript was filed in this court on December 24,1918. 1. 2. The cause never having been tried, of course there could be no new trial. The pretended motion for a new trial was an absolute nullity, and presented nothing to the trial court for its consideration. The time for taking an appeal cannot be extended in that manner. Rooker v. Bruce (1908), 171 Ind. 86, 85 N. E. 351; Goodrich v. Stangland (1900), 155 Ind. 279, 58 N. E. 148; Erwin School Tp. v. Tapp (1890), 121 Ind. 463, 23 N. E. 505; Corwin v. Thomas (1882), 83 Ind. 110; Reed v. Spayde (1877), 56 Ind. 394; Fisk v. Baker (1874), 47 Ind. 534; City of Huntington v. Cast (1900), 24 Ind. App. 501, 56 N. E. 949; Standard Oil Co. v. Bowker (1895)’ 141 Ind. 12, 40 N. E. 128; Decker v. Mahoney (1917), 64 Ind. App. 500, 116 N. E. 57. The pretended appeal, not having been perfected within the time fixed by statute, is hereby dismissed.